Statements Allowed As Evidence In Killing

Mark Downey's statements to Simsbury police after the 1992 fatal shooting of his girlfriend can be used as evidence at his trial, a Superior Court judge ruled Tuesday.

Judge Stuart M. Schimelman rejected statements by defense lawyers that Downey was too intoxicated to understand the consequences of talking with police after the March 29, 1992, shooting death of his live-in girlfriend, Cynthia Mitchell.

The court's ruling cleared the way for the murder trial of Downey, a 38-year- old Simsbury resident, to begin today in Hartford Superior Court.

Police have said Downey told them that the shooting was accidental. However, police say, forensic evidence and a re-enactment of the incident conflict with the defendant's version.

Mitchell was killed by a single shot from a 30.06-caliber hunting rifle. Her death occurred in an apartment occupied by her and Downey, at 71 Hopmeadow St. Downey says he was cleaning the rifle, and it discharged when he dropped it.

M. Fred DeCaprio and Ken Simon, Downey's public defenders, had moved to suppress statements he made to police after the shooting. His lawyers said Downey was too intoxicated to intelligently waive his rights and understand the questions asked. Police had him in custody without formally charging him with a crime, leaving him no choice but to answer their questions, they said.

But Schimelman, citing a tape recording made of Downey's initial interview with police hours after the incident, said his judgment was not impaired, and that he went voluntarily to the police station to assure officers that the shooting was accidental.

On Tuesday, during the second day of the hearing on the defense motion, Downey took the stand. He testified that he did not remember many of the statements that were included in a transcript of the interview. He added that he was intoxicated at the time, and that he has been told that he suffers from blackouts.

DeCaprio told the court that after police arrived, Downey was handcuffed and placed in the rear seat of a cruiser. He was then taken to the police station and questioned.

DeCaprio said even though Downey was told he was not being charged, ``he is not told he is free to leave by anyone.''

Downey was very intoxicated, traumatized and confused the evening of the shooting when police proceeded with the questioning, DeCaprio said. Given his state of mind, DeCaprio questioned whether the statements Downey signed waiving his rights and describing the incident were made knowingly and voluntarily.

In his ruling, Schimelman said Downey was not in legal custody, he knowingly and voluntarily made his statements concerning the incident, and the police were considerate of his rights.

``The tape recording, in the court's mind, makes it clear that Mr. Downey was at the police station [because] Mr. Downey wanted to convey to the officers that whatever happened in the apartment was accidental,'' Schimelman said.

Schimelman added that about 30 minutes after Downey was handcuffed, police removed them at his request. At the station, Downey was offered coffee and cigarettes and was told he could leave.

``As soon as the interview began, Mr. Downey was told that he was not under arrest and he was not being charged,'' Schimelman said.

Schimelman said he recognized that Downey's blood alcohol content was above the level at which a person could be legally declared intoxicated. But Downey showed no indication that he was so impaired that he did not understand the forms he signed waiving his rights to remain silent and authorizing his statement on the incident.

``The court believes Mr. Downey's statement on tape was the best evidence of what transpired. The reality is there was no slurred speech, no indication Mr. Downey did not understand the questions he was asked'' Schimelman said.